Pitambar Chouhan S/o Late Shri Bajru Chouhan, Aged About 33 Years R/o Kansabel District v. State of Chhattisgarh Through Aakshi Kendra Bagicha District Jashpur, Chhattisgarh
Case Details
1 2025:CGHC:1647-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 209 of 2021 Pitambar Chouhan S/o Late Shri Bajru Chouhan, Aged About 33 Years R/o Kansabel District Jashpur, Chhattisgarh. ... Appellant(s) (In Jail) versus State of Chhattisgarh Through Aakshi Kendra Bagicha District Jashpur, Chhattisgarh. ...Respondent(s) For Appellant For Respondent/State : : Mr. Suresh Kumar Verma, Advocate. Mr. Shailendra Sharma, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Per Ramesh Sinha , Chief Justice Judgment on Board 10 . 01 .202 5 1. Heard Mr. Suresh Kumra Verma, learned counsel for the appellant. Also heard Mr. Shailendra Sharma, learned Panel Lawyer, appearing for the respondent/State. BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2025.01.16 17:02:39 +0530 2. This criminal appeal is filed by the appellant/accused under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is 2 directed against the impugned judgment of conviction and order of sentence dated 23.01.2021 passed by the learned Session Judge, Jashpur, District Jashpur (C.G.) in Session Case No. 02 of 2020, by which the appellant has been convicted for the offences punishable under Sections 302 and 201 of the Indian Penal Code (IPC) and sentenced him to undergo rigorous imprisonment for life with fine amount of Rs. 1,000/-, in default of payment of fine additional rigorous imprisonment for 02 months and sentenced him to undergo rigorous imprisonment for 05 years with fine amount of Rs. 500/-, in default of payment of fine additional rigorous imprisonment for 01 month (both the sentence will run concurrently). 3. Case of the prosecution, in brief, is that the complainant, namely,
Facts
Kalawati Chouhan (PW-4) filed a First Information Report (FIR) at Kansabel Police Station on 12.07.2019 stating therein that her mother, namely, Sita Bai Chouhan, lived with her brother, namely, Pitambar, his two young sons, and her niece Neeraj. They resided together and used to earn their livelihood by begging at the bus stand. Neeraj had mental health issues, and Pitambar worked as a Kotwar. On 09.07.2019, when Kalawati visited Kansabel, she could not find her mother at home then she inquired with the neighbors, but could not find the whereabouts of her mother. The next day, Kalawati returned to Kansabel and searched for her mother. She asked Pitambar, who revealed that Neeraj had physically assaulted Sita Bai on 04.07.2019, around 3-4 p.m. On 12.07.2019, Kalawati and her brother Budhnath (PW-5) visited their mother's house and asked Pitambar to open the door. However, Pitambar claimed that he does not have the key, and Neeraj also denied having it. Thereafter, 3 Kalawati noticed something suspicious in the septic tank behind the house and, along with her brothers Ramdhani, Budhnath, Pitambar, and Siharbudiya, investigated further. They removed the soil and cover from the adjacent septic tank and found the dead body of Sita Bai inside it. A strong smell of phenyl emanated from the septic tank, and an empty phenyl bottle was found at the scene of occurrence. 4. Based on the complainant's report, a FIR vide Ex.P/21 was registered at Kansabel Police Station for the offences punishable under Sections 302 and 201 of the IPC, with Crime No. 91 of 2019. Thereafter, the Police initiated an investigation and prepared a site plan of the crime scene. The accused, Pitambar Chouhan was detained and questioned, and a memorandum statement vide Ex.P/3 was recorded. The accused led the Police to a spot where an iron rod (dauli) was recovered, which was sent for forensic examination. The forensic report revealed that the iron rod could have caused injuries to the deceased. The Police also collected various items from the crime scene, including bloodstained soil, phenyl, clothes, a mosquito net, plastic bags, and a piece of plywood, which were sent for chemical examination. The chemical examination report revealed that human blood was found on all the items except the plain soil and the lower garments of the accused. 5. Dead body of the deceased was sent for postmortem to the Community Health Center, Kansabel, District Jashpur (C.G.). Dr. Deepak Mirre (PW-12) conducted postmortem vide Ex.P/15 and found following injuries :- (i) A fractured skull bone, 5 cm behind the left ear, measuring 2.5 x 2 x 0.5 cm. 4 (ii) A fractured left clavicle (collarbone), measuring 6 x 0.5 x 5cm. The fractures were likely caused by a blunt- edged weapon. After conducting the postmortem, the Doctor expressed his opinion in the postmortem report vide Ex.P/16 that the death of the deceased was caused due to excessive bleeding leading to cardiac arrest. The death occurred 4 to 7 days prior and the nature of death was homicidal. 6. Statements of the witnesses were recorded. After due investigation, the Police had filed the charge-sheet against the accused/appellant before the jurisdictional criminal Court and the case was committed to the Court of Session for trial from where the learned Session Judge, Jashpur, District Jashpur (C.G.) received the case on transfer for trial and for hearing and disposal in accordance with law. 7. The trial Court has framed charges against the appellant for the offence punishable under Sections 302 and 201 of the IPC and proceeded on trial. The appellant abjured the guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 8. In order to bring home the offence, the prosecution examined as many as 13 witnesses and exhibited 28 documents. The appellant/accused examined none in their defence. 9. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 23.01.2021, convicted the accused/appellant for the offences punishable under Sections 302 & 201 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been filed. 5 10. Learned counsel for the appellant vehemently argued that the conviction of the appellant is substantially based on the circumstantial evidence, without there being any eye witness, though the chain of circumstances are missing and not connected to each other. None of the witnesses have supported the case of prosecution. He further submits that even if the entire case is taken at its face value, the case would not travel beyond Section 304 Part-II of the IPC. Evidence adduced on behalf of the prosecution is suspicious in nature and same is not safe for placing reliance that too for conviction of the appellant for commission of heinous offence of murder, therefore, the appellant is entitled for benefit of doubt. 11. On the other hand, learned State counsel supports the impugned judgment and submits that there is ample evidence on record to connect the accused/appellant with the offence in question. The learned trial Court, after proper appreciation of the evidence and materials available on record, has convicted and sentenced the appellant/accused, which warrants no interference, and therefore, the appeal deserves to be dismissed. 12. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the trial Court with utmost circumspection and carefully as well. 13. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution. 14. The first question for consideration would be, whether the trial Court was justified in holding that death of deceased was homicidal in nature ? 6 15. The trial Court, relying upon the statement of Dr. Deepak Mirre (PW-12), who has conducted postmortem on the body of deceased, vide Ex.P/15, has clearly come to the conclusion that the death of deceased was caused due to excessive bleeding leading to cardiac arrest and the nature of death was homicidal. The said finding recorded by the trial Court is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. Even otherwise, it has not been seriously
Legal Reasoning
a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. Their Lordships also held that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certain lies upon him. 23. The principle of law laid down by their Lordships of the Hon’ble Supreme Court in the matter of Gurcharan Singh (supra) has been 3 AIR 1956 SC 460 10 followed with approval by their Lordships in the matter of Sawal Das v. State of Bihar4 and it has been held that burden of proving the case against the accused was on the prosecution irrespective of whether or not the accused has made out a specific defence. 24. In the present case, death of the deceased was caused due to excessive bleeding leading to cardiac arrest and the death was homicidal in nature and pointed object has not been substantially disputed on behalf of the appellant. On the other hand, it is also established by the evidence of Dr. Deepak Mirre (PW-12) and the postmortem report (Ex.P/16) that the death of deceased was homicidal in nature. 25. As regards complicity of the appellant in crime in question, conviction of the appellant is substantially based on the evidences of Dr. Deepak Mirre (PW-12). 26. Dr. Akash Kujur (PW-1), who conducted the postmortem of the deceased vide Ex.P/15 and he found the injuries as stated in paragraph 05 of this appeal and he opined that the death of the deceased was caused due to excessive bleeding leading to cardiac arrest and the death was homicidal in nature. He further submits that after examining the postmortem report vide Ex.P/2 and the knife presented before him, he opined that the injury mentioned in the postmortem report (Ex.P/2) could have been caused by the knife presented before him. 27. Kalawati (PW-4), stated in her deposition that she resided in Khutitola village, while her mother lived in Kansabel. When she visited her mother's house, she found the door locked. Upon inquiring with the 4 AIR 1974 SC 778 11 neighbors, she was informed that the door had been locked for two to three days. Thereafter, she searched for her mother at the bus stand and inquired with acquaintances, but no one had seen her mother in two to three days. She gave her mobile number to the neighbors and asked them to inform her if her mother returned. Thereafter, she met the accused, Pitambar, who was in intoxicating condition, and she asked him about her mother's whereabouts. Pitambar claimed that he does not know. She suspected that Pitambar might be hiding something, as he lived with her mother. The next day, she returned to her mother's house with her brother, Budhnath (PW-5). They asked Pitambar for the house key, but he refused, claiming that Neeraj had the key. Neeraj also denied having the key. She feared that Pitambar and Neeraj might have harmed her mother. She entered the house through a side entrance and searched for her mother, but she was not found inside. They then proceeded to the backyard, where they found a septic tank with freshly laid soil on the lid. They removed the soil and found her mother's leg inside the tank. She immediately informed the Police at Kansabel Police Station. Budhnath (PW-5), has corroborated her statement. 28. Mohd. Ramjan Ali (PW-1), has stated in his deposition, that the Police seized the following items from near the septic tank: an iron rod resembling a shovel, two glass bottles, some clothes with blood-like stains, a plywood board with bloodstains, blood-soaked soil, and plain soil, which were exhibited as Ex.P/2. Additionally, he mentioned that the Police seized a green mosquito net, a white bag, and a floral bag from the house of the accused. Rakesh Suryawanshi (PW-13), corroborated this statement, confirming that the Police conducted the seizure. 12 29. The statement regarding the injuries found on the body of the deceased is corroborated by the testimonies of Kalawati (PW4), Budhnath (PW-5), Jaimati Chouhan (PW-6) and Sarasvati Chouhan (PW- 8), who all saw the body when it was retrieved from the septic tank. 30. Investigation OfÏcer, Rakesh Suryavanshi (PW-13), states in his deposition that on 13.07.2019, he issued notices vide Ex.P/22 to Khageshwar Prasad Sahu (PW-2) and Raman Kumar Chouhan to remain present. In their presence, he took the memorandum statement of accused Pitambar Chouhand vide Ex.P/3, which stated that the iron rod (dauli) was recovered from a pond. Khageshwar Prasad Sahu (PW-2) and Hemant (PW-3) confirmed that the accused made this statement in their presence. The statement of the accused remained uncontested, even during cross-examination. 31. Sarasvati Chouhan (PW-8), has stated in her deposition that the accused confessed to hitting Sita Bai with the iron rod (Dauli). The accused stated that he threw the body into the septic tank and the iron rod (Dauli) near the pond. During cross-examination, the accused accepted that he was in Police custody when he made this confession. 32. Gopal (PW-7), has stated in his deposition that he retrieved the iron rod (dauli) from the pond in the presence of Khageshwar Prasad (PW-2) & Hemant (PW-3). A recovery memo (Ex.P/4) and seizure memo (Ex.P/5) were prepared in this regard. Investigating OfÏcer, Rakesh Suryawanshi (PW-13) confirmed that these documents were prepared in the presence of witnesses. Notices (Exs.P/22 & P/23) were also issued for their presence. Gopal (PW-7) further stated that he, along with the accused 13 and Police, went to the pond and retrieved the iron rod (dauli), which was then handed over to the Police. Even during cross-examination, these facts remained unchallenged. Thus, it is established that the accused led to the recovery and seizure of the iron rod (dauli). 33. Now, the question is, whether the prosecution has discharged its initial or general burden or primary duty of proving the guilt of the accused beyond reasonable doubt? 34. In this regard, the trial Court observed that the prosecution established the chain of circumstantial evidence proving that the accused and his mother Sita Bai lived together in the same house in village Kansabel. However, when Sita Bai went missing, Pitambar did not inform anyone or initiate a search. Later, the body of Sita Bai was found in the septic tank of their house. The autopsy report revealed that she had suffered severe injuries, including a deep cut on the back of her left ear, which was inflicted before her death using a sharp edged weapon. The cause of death was determined to be homicide. During the investigation, the accused led the Police to a spot near Mudatoli pond, where an iron rod (duali) was recovered and seized. The seized iron rod (dauli) matched with the injuries found on the body of the deceased. Furthermore, a bloodstained T-shirt belonging to Pitambar was found at the crime scene, and forensic analysis revealed that the blood belonged to ‘B’ blood group. A bottle of phenyl, a chemical used for cleaning, was also found near the septic tank, which Pitambar had purchased from a local store. The accused failed to provide any explanation for the circumstances that implicated him in the crime. The prosecution successfully proved the facts of the case through reliable evidence, establishing the guilt of the accused beyond reasonable doubt. 14 35. A careful perusal of the aforesaid findings recorded by the trial Court would show that the prosecution has established that, 1. death of deceased was homicidal in nature; 2. it is the appellant who has murdered the deceased with the help of iron rod (dauli). 36. Considering the statements of the prosecution witnesses, the finding recorded by the trial Court in its judgment, the facts that the appellant has not offered any explanation under Section 313 of the Cr.P.C., it is clearly and reliably established that it was the accused/appellant, who caused the death of the deceased by hitting the deceased with help of iron rod (dauli) and in this regard, there is no defence on the part of the accused/appellant during his examination under Section 313 of the Cr.P.C., and therefore, we are of the considered opinion that the prosecution has proved its case beyond reasonable doubt and the trial Court has rightly convicted the accused/appellant for the offences punishable under Sections 302 & 201 of the IPC. Therefore, we do not find any illegality or irregularity in the findings recorded by the trial Court. 37.
Arguments
disputed by the learned counsel for the appellant. We hereby afÏrm the said finding. 16. The next question for consideration would be, whether the trial Court has rightly held that the appellant is author of the crime by relying upon the following circumstances:- (i) Homicidal death was proved by the prosecution as per postmortem report (Ex.P/16) of Dr. Deepak Mirre (PW-12) who conducted postmortem. (ii) As per the case of the prosecution, the fact of death of deceased was within the knowledge of the appellant, however, there was no any explanation given by the appellant in his statement under Section 313 of the Cr.P.C. Thus, burden of proof was on the appellant to explain such circumstance, which he failed to explain. 17. Now, the question would be, whether Section 106 of the Evidence Act would be applicable or not? 18. Section 106 of the Indian Evidence Act, 1872, states as under: - “106. Burden of proving fact especially within knowledge.—When any fact is especially within the 7 knowledge of any person, the burden of proving that fact is upon him.” 19. This provision states that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him. This is an exception to the general rule contained in Section 101, namely, that the burden is on the person who asserts a fact. The principle underlying Section 106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the other side. To invoke Section 106 of the Evidence Act, the main point to be established by prosecution is that the accused persons were in such a position that they could have special knowledge of the fact concerned. 20. In the matter of Shambhu Nath Mehra v. The State of Ajmer1, their Lordships of the Hon’ble Supreme Court have held that the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 of the Evidence Act is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difÏcult, for the prosecution, to establish facts which are “especially” within the knowledge of the accused and which he could prove without difÏculty or inconvenience. The Supreme Court while considering the word “especially” employed in Section 106 of the Evidence Act, speaking through Vivian Bose, J., observed as under: - “11. … The word "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted 1 AIR 1956 SC 404 8 otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P.49 (B).” Their Lordships further held that Section 106 of the Evidence Act cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts. 21. The decision of the Hon’ble Supreme Court in the matter of Shambhu Nath Mehra (supra) was followed with approval recently in the matter of Nagendra Sah v. State of Bihar2 in which it has been held by their Lordships of the Hon’ble Supreme Court as under: - “22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference. 23. When a case is resting on circumstantial 2 (2021) 10 SCC 725 9 evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.” 22. Similarly, the Hon’ble Supreme Court in the matter of Gurcharan Singh v. State of Punjab3, while considering the provisions contained in Sections 103 & 106 of the Evidence Act, held that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him, but neither the application of Section 103 nor that of 106 could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It was further held by their Lordships that it is only when the prosecution has led evidence which, if believed, will sustain
Decision
For the foregoing reasons, the criminal appeal being devoid of merit and is liable to be and is hereby dismissed. 38. It is stated at the Bar that the appellant is in jail, he shall serve out the sentence as ordered by the learned trial Court. 39. Registry is directed to send a copy of this judgment to the 15 concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 40. Let a certified copy of this judgment along with the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Brijmohan